IN SEAWORLD CASE, JUDGE BACKS SAFETY BARRIERS

A judge ruled Wednesday that SeaWorld will have to find a way to protect its trainers during performances involving killer whales, a decision that stemmed from a trainer’s 2010 death at the Orlando theme park.

The ruling, which followed a nine-day hearing last year before an administrative law judge, could potentially keep trainers out of the water during SeaWorld’s iconic Shamu performances at its parks, including San Diego’s.

Long an integral part of the show, the water work was immediately suspended in February 2010 when trainer Dawn Brancheau was battered and drowned by Tilikum, a 12,000-pound male orca, as spectators looked on.

The U.S. Occupational Safety and Health Administration had fined SeaWorld $75,000 and issued three safety violations, the most serious of which accused the park of exposing its employees to the possibility of being struck or drowned by killer whales.

Judge Ken Welsch, while concluding there were safety violations, reduced the fine to $12,000 and determined that the actions were not “willful,” as originally cited, instead calling them “serious.”

However, Welsch sought to underscore the gravity of the violations.

“Trainers were required to work in close contact with killer whales during performances,” he wrote. “The killer whales sometimes engage in unpredictable behavior, including seizing trainers with their mouths, holding the trainers under water, and ramming the trainers while in the water. SeaWorld’s operant conditioning program places an unrealistic burden on trainers to recognize precursors and react appropriately to forestall undesirable behavior.”

In a statement issued late Wednesday, SeaWorld pointed out that Welsch had significantly reduced the original penalty and further noted that he overruled OSHA’s assessment that SeaWorld’s actions were “willful.”

“The judge also unequivocally stated that SeaWorld is a ‘safety-conscious employer’ with a ‘highly detailed and thorough’ safety training program,” said Jim Atchison, president and chief executive officer of SeaWorld Parks & Entertainment. “We have maintained all along that the allegations of ‘willful’ were meritless and are vindicated that the judge agreed.

“The company does disagree with some of the judge’s interpretation of the evidence, and is still exploring if further action is necessary.”

How SeaWorld will formally respond to the ruling is unclear. Park officials have previously said in interviews that they would like to return the trainers to the water, arguing that such interaction not only makes for more compelling performances but also enhances the bond they share with the whales. Park officials have also said they are spending tens of millions of dollars on new safety features.

It is now up to SeaWorld to produce a plan that is acceptable to OSHA, said Department of Labor spokesman Michael Wald.

Welsch agreed that OSHA’s recommendation that SeaWorld minimize potential dangers by either installing physical barriers between trainers and killer whales or requiring the trainers to maintain a minimum distance from the orcas is feasible.

David Michaels, assistant secretary of labor for OSHA, said Wednesday he was heartened by the ruling.

“OSHA’s intent has been to ensure the safety and health of employees who work with SeaWorld’s killer whales in performances,” Michaels said. “In his decision, the judge has upheld the OSHA citations.”

Welsch made it clear that his ruling does not apply to interactions between trainers and orcas outside of public performances.

“As the custodian of its killer whales, SeaWorld has an ethical duty to provide health and medical care to them,” Welsch wrote. “Unlike show performances, which can successfully continue without close contact between the killer whales and the trainers, SeaWorld’s husbandry activities require a certain amount of contact between the trainers and the killer whales.”

While offering praise for SeaWorld’s training program, Welsch disputed some of the company’s key arguments.

“SeaWorld’s contention that it was unaware working with killer whales presents a recognized hazard is difficult to reconcile with numerous comments made over the years by SeaWorld management personnel,” Welsch said.

“Whether the trainers were fully immersed and swimming with the killer whales for a waterwork show performance, or standing poolside or on a slideout for a drywork show performance, SeaWorld knew its trainers were at risk for being struck or drowned by a killer whale.”